International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186

Divorce and Islamic Law of Inheritance: A Comparative Analysis of the Position of Divorcee

Dr. Muntaka Yahaya Aminu Department of , Faculty of Arts and Islamic Studies, Usmanu Danfodiyo University, Sokoto, Nigeria

Abstract: - emphasizes on family maintenance. is Arabs say: nakaha'l-matru'l-'ard. Likewise when the trees are the worst profitable in Islam but it is allowed if life is hard for intermingled it is said: tanakahat'il-ashjar (Al-Sabuni, 1971). couples because of their conflicts. Islam advices divorce and Technically, nikah refers to cohabitation (mubasharat). In sometimes it is obligatory for a family is codified and detailed Shari`ahnikah refers to a contract. A contract means a knot or rules. Islam considered the rights and position of divorcee to a tie. As a woman and a man are tied together by a knot (of inheritance and provides some conditions and rules concerning it. This paper deals with three sections; first section, discusses wedding called the wedlock), hence nikah is also called issues such as meaning of marriage, divorce, its types, conditions `aqd(a contract) (Al-Sabuni, 1971). and others. Second section deals with inheritance such as pillars of inheritance, conditions, sources among others. In the third SECTION I section of the paper it highlights and analyses the position of divorcee in Islamic law of inheritance with emphasis to the views Meaning of Divorce of some scholars. The method used in the paper in data collection Divorce is dissolution of marriage contract by prescribed is analytical. formulae (Hussaini, 2005). In Islamic law it means the Keywords: Divorce, Islamic Law and Inheritance. separation which the husband wants as a matter of right (Doi,2007). It also means breaking of a bond; it is derived INTRODUCTION from al-Itlaq, which means to send or to leave (Hallaq, 2008). To dissolve a contract of marriage by a husband means he is In the name of , most Gracious, Most Merciful. free in the exercise of its rights. He may, whenever he likes, Islamic law, the Shari’ah, is a way of life which the law-giver relinquish the marital rights obtained in exchange for the enjoins to all those who accept Islam to follow. The word dowry. Islam itself means a complete submission to the way of Allah Types of Divorce in all matters of life both in this world and the hereafter. Also Islam is a universal religion. It transcends all limits of colour, A divorce is either revocable or irrevocable arevocable creed and culture. It knows no geographical boundaries. As it divorce is one in which the husband is empowered to revoke is a complete code of life. A perfect code adaptable to the divorced during the waiting period () in respective of mankind of all ages and situations. the consent of the wife (Hussaini, 2005). Islam has done justice to all kinds of human being where 0ne of the conditions of a revocable divorce is that the justice is necessary and applicable especially in the area of marriage should have been consummated, because a wife inheritance. Islam did justice to all; male, female weaker sexes divorced before consummation of marriage does not have and infants where all were allowed to inherit. observe the waiting period (Iddah) (Hussaini, 2005). Islamic Law is an all-embracing legal system that regulates In accordance with the saying of Allah in the Qur‟an where and guides the life and conduct of Muslims concerning their He says: rights and duties. The purpose of the law is to promote the O believers! When you marry the believing welfare of the people individually and collectively. Its basic women and then divorce them before you principles are justice, equality, liberty, and fraternity. From touch them, you are not entitled to reckon this background this paper attempts to explain the justice of for them an 'Iddah.... (Qur‟an, 33:49). Islam on the position of divorce in the field of Islamic law of inheritance. However a brief of explanation on marriage, Talaqba'in divorce in which the husband may only live again divorce, its types, conditions among others were provided in with his mutallaqah (divorcee) after he had contracted a new the paper. 'aqd al marriage with her subject to such conditions as prescribed by the Shari‟ah (Hussaini, 2005). DEFINITION OF NIKAH (MARRIAGE) IN ISLAM Talaqba'in are of two kinds: ba'in(irrevocable divorce - minor Literally, the word nikah means "to collect things". It is used degree) and ralaqba'inkubra (irrevocable divorce - major to connote the piercing or absorbing of a thing into another degree) (Hussaini, 2005). thing. When the water of rainfall absorbs into the earth the

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International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186

As for talaqba'insughra, it is the talaq in which the mutalliq The wise advice of the Qur‟an is: (divorcer) and the mutallaqah(divorcee) may resume married Divorce is to be pronounced twice. Then life only after they have contracted an entirely new marriage. either keep them in kindness or release them Ta laqba'inkubra is a divorce where the marriage is fully and go in kindness (Qur‟an, 2:229). completely ended and 'the mutalliq and the mutallaqah may And in another verse Almighty Allah says: not remarry save if the mutallaqah has, by free of choice and natural events, married another man, lived with him naturally And the divorced women should keep and normallyas his wifeand by normal and natural events be themselves in waiting for three menstrual divorced by him or widowed byhim and stays out her required courses. And their husbands have a better 'iddah fully and completely (Hussaini, 2005). right to take them back during this period, if they desire reconciliation (Qur‟an, 2: 228). In an irrevocable divorce, the divorcer may not return to the divorced wife, who belongs to one of the following Another significant Qur‟anic injunction is that during the categories: period of waiting the women should not be sent away but should be retained, in the hope that living together might unite 1. A wife divorced before consummation, by consensus of all hearts, this will be indicated where Allah says: the schools. O Prophet, when you divorced women, 2. A wife who has been divorced thrice. There is consensus divorce them for their prescribed period, and here as well. calculate the period, and fear Allah, your 3. A divorcee through khul'. Some legists consider this form Lord. Do not turn them out of their homes, of divorce void and say that it is not a divorce at all. nor should they themselves leave; unless they commit an open indecency. And these 4. A menopausal divorcee, which observes that: She has no are the limits set by Allah. And who-so goes 'iddahand the rules applicable to a divorcee before beyond the limits of Allah; he indeed consummation apply to her as well. According to it, wrongs his own soul. You do not know that If you are in doubt concerning those of your Allah may, after this, bring about wives who have ceased menstruating, know reconciliation. So when they have reached thattheir waiting period is three months, and their prescribed period, retain them in (the same is the waiting period of) those kindness or release them in kindness who have not yet menstruated ...(Qur‟an, (Qur‟an, 65: 1, 2). 65:4.). Divorce is not permissible during the course of a menstrual 5. The say: Valid seclusion (khalwah) with the wife, discharge. If divorce becomes a necessary, it should come even without consummation, requires the observance of during the period of purity. There are two reasons behind this 'iddah. But the divorcer is not entitled to return to her during injection (Maudoodi, 1941). the 'iddah, because here the divorce is irrevocable (Gurin, Firstly, during the course of menstrual discharge woman 1998). generally become glum and ill-tempered. Changes in their Conditions for Divorce body chemistry provoke them to do things which they would not. This is a medically proved fact. That explains why The husband is free to exercise the right to divorce in Islam disputes arising between husband and wife during the course but under some prescribed conditions, he has been placed of a menstrual discharge are not considered a sufficient under checks and limitations which permit him to use this ground for divorce. right only as a last resort. The verdict of the Qur‟an is that a man should do his best to pull on with his wife even though Secondly, during this period, the bodily contact, which is an he does not like her. Allah the Almighty says: important factor in the mutual attachment of the spouses, is suspended. This can breed estrangement between them. But Treat them (women) well, though you when the temporary barrier is no more, the serene intimacy of dislike them. May be you dislike a thing and conjugal relations is likely to brush off from the man‟s mind Allah has placed in it great good for you any lurking thoughts of separation; and the spouses are united (Qur‟an, 4:19). together, once again into an integral whole (Maudoodi, 1941). However, if it becomes impossible to pull on together, the It was on these grounds that the Prophet (peace be upon him) right to divorce can be exercised. But it should not be a head- disapproved of divorce during the course of menstrual long plunge. There should be three spaced by periods discharge. Abdullahi bin Umar divorced his wife during the of menstrual discharge. By the time the third cleansing, there course of menstrual discharge. Then Umar (R.A) reported the will be plenty of time for second thoughts. Some way of fact to the Prophet (peace be upon him). He felt upset and told reconciliation may, after all, be found (Maudoodi, 1941).

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International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186

The latter is more frequently used by the Muslim .)الفراءض) Umar (R.A) to direct his son to retain his wife and divorce her after she was cleansed (Maudoodi, 1941). Jurists than the former (Bin Haider, 2003). which )ورت )’Who is Divorcee? Al-Mirath’ is derived from the verb ‘Waratha means to inherit anything. Another literal meaning of the A divorced woman or a woman who is separated from her word mirathis that, it connotes the handing over of a thing husband (Fauzan, 2017). from one person to another (Al-Zuhaili, 1997). Difference between Divorcee and Widow )الفريضة) And the word Al-Faraidh is a plural of Al-Faridha which literally )فرض)Here are some tips to understanding the differences between which is derived from the verb Faradha divorcee and widow these differences are as follows: mean “a fixed share” (Al-Zuhaili, 1997). 1. Divorcees did not have happy marriage otherwise they In the legal terminology, it is knowledge about some rules of had still married. Widows had a happy marriage or at Shari’ah which guides us who will inherit and who will not least they only remember the happier times. and what shares will go to the heirs from the property of the 2. Divorcees have spouses who are regularly involved in deceased (Al-Zuhaili, 1997). their children‟s lives. The spouse helps with decisions Pillars of Inheritance about the kids; attends their sporting events, theater performances, and weddings. Widows don‟t have co- Pillars of inheritance are those important elements, if any one parents to rely on, but also don‟t have listen to their of them is missing in a given case, and then there is no opinions on child rearing. inheritance. They are three (Al-Rahbiy, 2001). 3. Divorcees get a break from parenting if they have Al-Muwarith(The deceased person) shared custody. Widows have a full time parenting gig. 4. Divorcees may get some ongoing financial support for A person who had died in fact or in law and left behind some the children and or/alimony payments. Widows may inheritable property and relatives who have right to inherit his have inherited life insurance, butit‟s a typically one- property. time payment. 5. Divorcees have hostility towards the ex-husband and Al-Warith(The heir) perhaps the entire female/male population. Widows Who is related to the deceased and entitled to get share from generally have a favourable opinion opposite sex. the deceased‟s property. 6. Divorcees have to deal with an ex-husband who may be a pain in the butt. Widows don‟t come with the ex- Al-Maurooth(The subject matter or estate) factor baggage. The property of the deceased person. It is also known as Al- 7. Divorcees may compare with the new person with the Tarika, either it is movable (Manqool) or immovable ex-husband the partner may feel the need to prove (A’aqar). The property also includes the Qiyyami or the him/herdifferent than the ex-husband Widows will talk Mithli. Qiyyami are those things that are dissimilar and are about their deceased spouse, and this can be annoying. not interchangeable, like land, animals, house, etc. While 8. Divorcees likely didn‟t have the best sex life towards mithli are those properties whose unites or parts are similar to the end of the marriage. They may be excited with each other and they are interchangeable without many someone who enjoys sex wants to be intimate again. differences. For example, oranges, coins and books etc (Abu Widows in happy marriages may have had a decent Malik, n.d). sexlife and want to have it again. 9. Divorcees frequently have had family and friends who Grounds or Reasons of Inheritance sided with one spouse over the other. Widows‟ family There are three reasons or grounds of inheritance in Islamic and friends may be happy include into the new person law. Anyone claiming a share must establish that he possesses into their lives or it may be hard to for that guy/girl to one of the following reasons (Al-Sharbiniy, n.d). walk in the shadow to the deceased (Maghniyyah, )النسب) (A-Nasab (Blood Relationship .1 .(1997 Blood relations are the descendants and the SECTION II ascendants of the deceased person. They include deal with Islamic Law of inheritance where it covers upspring, both male and female, parents brothers, definition, pillars, conditions, reasons, impediments, sources, and uncles. )الزواج) (heirs among others 2. Al-Zawaj (Valid Marriage A valid marriage contract also makes one of the Definition of Inheritance spouses eligible to inherit the other ((Al-Sharbiniy, In Islamic jurisprudence there are two words used for the law n.d)). (and Al-Fara’idh 3. Al-Wala’u (Emancipation )الميرات) of succession, they are Al-Mirath

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International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186

This is if a master emancipates his slave, he is Therefore, in order to avoid such possibilities, Islam has entitled to inherit the free slave in the absence of any provided rules impeding the killer to inherit. It has been other heir of the deceased (free slave). But not vice reported by Umar Bin Khatab that, I heard Prophet (peace be versa. As it is reported in the of Barirah the upon him), saying: “The killer inherits nothing” (IbnMajah, Prophet (Peace be upon him) said: “Al-Wala’a has a 2002) relationship similar to that of blood relationship” 2. Difference of Religion (Al-Bukhari, 2003). This is a situation whereby the religion of the deceased is According to some jurists, there is another ground of different from that of his existing relatives or heirs. Hence, inheritance that is, the bait al-mal, or the public treasury. In where the religion of the deceased is different from his heirs, other words, it means that, where a deceased is not survived then the heirs are barred or impeded to inherit him. It is a by anybody who could come under any of the above stated unanimous view of the Muslim relative as it is provided for by grounds then the estate goes to the bait al-mal.(Bin Haider, the Glorious Qur‟an where Allah says: 2003). “And never will Allah grant to the unbeliever a way Conditions of Inheritance (to triumph) over the believer” (Qur‟an, 4: 141) There are three conditions of inheritance that must be satisfied And it is reported by Usama Bin Zaid that, the Prophet (peace before one can have a share in theestate. These conditions are: be upon him) said: 1. Death of the muwarith (testator). The death of the “A Muslim cannot be the heir of a testator must be actual and clear. It should be either disbeliever nor can a disbeliever be the heir actual death, or by the court pronouncement in a case of a Muslim” (Al-Bukhari, 2009) of a missing person. 2. The survival of warith (heir) at the time of death. Hence, in the light of the above stated authorities, difference Before an heir can inherit the deceased, it must be of religion between the heirs and deceased is, undoubtedly, a provide that he was alive at the time of the death of factor of impediment to inheritance. the testator. According to Imam Abu Hanifa, Imam Shafi‟i and Imam 3. There must be one of the grounds of inheritance. Malik, a non-Muslim can never inherit his deceased Muslim That is before a person can claim a share from the relative, whether he converted to Islam before the distribution estate of the deceased, he must show that he falls or after (IbnRushid, 1989). under one of the grounds of inheritance as mentioned earlier. (Al-Sabuni, 1423 A.H) However, according to Imam Ahmad Bin Hanbal, a non- Impediments to Inheritance Muslim relative can inherit his Muslim relative, if he converted to Islam after the death of the deceased, but before The previous pages provide that before a person can claim his the distribution of the estate (Ibn Qudamah, 1419 A.H). right to inherit his deceased relative, he must show that he is 3. Slavery related to him through one of the grounds of inheritance. Nevertheless, a situation may arise where by a relative is Slavery is considered to be a factor of impeding a slave to barred to claim his right to inherit even though he might be inherit. A slave cannot inherit his relative nor can his relative duly falling under one of the grounds of inheritance. This is a inherit him. This is because a slave is considered to be the situation whereby he is falling within one of the impediments estate of his master. Therefore, if he is allowed to inherit, to inheritance. These impediments are those factors that are indirectly it would be his master who would actually gain. To recognised by Shari’ah as those acts if committed by a heir, or this regard the Glorious Qur‟an says: he found himself in without his own act, would bar him from inheriting his deceasedrelative. There are three impediments “Allah sets forth the parable (of two men: to inheritance, which have been unanimously agreed upon by one) a slave under the dominion of another, the four sunni schools, they are: (IbnJuzayyi, n.d) he has no power of any sort and (the other) a man on whom we bestowed a good 1. Killing provision from us and he spends thereof 2. Difference of Religion secretly and openly. Can they be equal? (by 3. Slavery no means)” (Qur‟an, 16: 75). 1.Killing (Qatal) And it is reported that the Prophet Qatal, killing, homicide, manslaughter, all are the names (peace be upon him) said: given to the act of taking the life of a fellow human being. “A slave does not possess In Islamic law of inheritance, killing is considered to be an anything, except the right to impediment to inheritance. Because if a killer is to be allowed divorce”(Al-Bukhari, 2003) to inherit the person he killed, it would become rampant.

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It should be noted that at this juncture that a heir who is presence of other heir(s). All heirs are not equal. Some of impeded by one of the above discussed impediments to them have priority over the others. The total number of heirs inheritance cannot affect or disturb the share of other heirs. He is twenty five. There are fifteen male heirs and ten female is considered not existing in law. For instance, where a (IbnQudamah, 1419). woman is killed by her son, and she is survived by her The male heirs are: husband, full brother and the killer son, the husband is entitled to1/2 and the full brother takes the remaining as an agnatic 1. Son 2. Son of son (how low so ever) 3. Father 4. heir. The killer son gets nothing. And his existence is not Grandfather (father of father how high so ever) 5. valued. Therefore, he cannot force the other heirs to get their Full brother (germane brother) 6. Half-brother smaller shares or to be excluded. The same rule is applicable (consanguine brother) 7. Uterine brother 8. Son of to the other impediments (Al-Rahbiy, 2001) full brother(hls) 9. Son of half-brother (hls) 10. Full paternal uncle 11. Half-paternal uncle 12. Son of full Sources paternal uncle (hls) 13. Son of half paternal uncle The sources of Islamic law of inheritance are four as follows: (hls) 14. Husband 15. Male emancipator (who freed his slave) (Bin Haider, 2011). 1. The Glorious Qur‟an Note:If a woman died leaving behind all above mentioned Almighty Allah explained the shares of children (male and male heirs only three of them will inherit her, they are female) daughter, daughters, parents, in verse eleven of Surah husband, father and son. al-Nisa‟i as He explained the portion of spouses, uterine brothers, and uterine brother in inheritance in verse twelve Female heirs are: finally mentioned the shares of full sister or half-sister, 1. Daughter 2. Daughter of son (how low so ever) 3. brother alone whether full or half brother, two sisters (full or Mother 4. Grandmother (mother of father) 5. half), brothers (full brothers together with full sisters or half- Grandmother (mother of mother) 6. Full sister brothers together with half -sisters) in verse 176 of Surah Al- (germane sister) 7. Half-sister (consanguine sister) 8. Nisa‟ (Fauzan, 2017). Uterine sister 9. Wife 10. Female emancipator (who 2. freed her slave) (Al-Dasuqi, n.d) Ibn Abbas (may Allah be pleased withhim) narrated, the Note 1:If a man died leaving all above mentioned female Prophet (peace be upon him) said: Give the Fara‟id (the shares heirs only five of them will inherit him; they are daughter, prescribed in the Qur‟an) to those who are entitled to receive daughter of son, mother, full sister and wife. it. Then whatever remains, should be given to the closest male Note 2: If a person died leaving behind all above mentioned relative of the deceased. male and female heirs only five of them will inherit him. They Shaykh Salihbn Fauzanbn Abdallahbn Fauzan said after citing are father, son, mother, daughter and one of the spouses the verses of inheritance if you add the saying of the Prophet (husband or wife). (peace be upon him) he cited the Hadith mentioned above you SECTION III find that it covers the rules of inheritance (Fauzan, 2017). Analysis of the Position of Divorcee in Islamic Law of 3. Consensus of the Companions Inheritance according to the views of Muslim Scholars: bnSalih Al-„Uthaimin mentioned in his book Inter-inheritance between husband and wife is possible until titled Tashil al-Fara’id “Muhammad bnNasar extracted the their relationship ceases either by divorce or the of consensus of the companions that 1/6 is the share of one marriage. But inter-inheritance is possible during revocable grand-mother and above in inheritance” („Uthaimin, 2007) divorce and within the limits of the “Iddah”. On the other 4. The (studiousness) of the companions hand, marriage annulment and definite divorce stops inheritance between husband and wife as soon as they depart, The inheritance of collaterals (full brothers or half-brothers) unless the husband is accused of divorcing his wife in order to together with grandfather is an Ijtihadled by some deprive her from inheritance especially during the last illness companions this is the view ofAliyubnAbiTalib, IbnMas‟ud in which death occurs (maradulmaut). and ZaidbnThabit, lateron, this view was adopted by Imam Malik, Imam Shafi‟i, Imam Ahmad in one of his views, Abu It is appropriate to firstly define maradulmaut, explaining the Yusuf and Muhammad bn Hassan from School of law effects of Tasarrufat (Operations) duing maradulmaut (Ambali, 1998). because the topic of discussion is falling under the operations of the deceased during maradulmaut that is position of The Heirs irrevocably divorced woman divorce irrevocably during Heir is defined as a person whose relation to the deceased maradulmaut. legally entitles him to inherit part of deceased property

depending on factors such as his relation to the deceased and

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International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186

Definitions of death sickness he dies after the expiry of the Iddah, she will not inherit in his estate (MajlisulUlama‟u of South  Death sickness is an illness which results in death. Africa, N.D).  The point in time at which death sickness commences may be debatable. The issues that need Then from here, the researcher will focus on his comparative to be addressed are the physical and mental state of analysis of the position of divorcee in Islamic law of the individual, the underlying disease and the actual inheritance by bringing the views of some jurists among the death. schools of law and their reasons, and discussion will  A prolonged illness which continues for a whole commence by divorce during death sickness or inheritance of year, or more, ceases to be regarded as Maradul- divorced woman or divorcee and her position according to the Maut. Under these circumstances, Maradul-Maut Muslim Scholars: will be considered to commence from the time when If a man divorced his wife revocably (TalaqRaji’i) and died, it the disease leading to possibility of death acute. has been unanimously agreed by Muslim Jurists that she will  If a person who is seriously ill recovers, then inherit him (the ex-husband), if her Iddah (waiting period) did obviously the illness cannot be defined as death not expire at the time of his death. But if the divorce was sickness (Hussaini, 2005). irrevocable (TalaqBa’in), then she cannot inherit him at all, The Effects of Tasarrufat (Operations) During MaradulMaut whether her Iddah did expire or not (Fauzan, 2017). 1. If during MaradulMaut (death sickness) a man However, it should be noted that, if the irrevocable divorce acknowledges a right/obligation which is common (TalaqBa’in) was pronounced during the death sickness, and knowledge or evidenced by witness, then such the deceased died due to the same sickness, the four Islamic acknowledgement will be fully valid and its schools of jurisprudence have different views (Bin Haider, discharge will be just as incumbent as all other rights 1975). and obligations which were confirmed prior to Hanafi School: Imam Abu Hanifah is of the view that if the MaradulMaut. Talaqba’in is pronounced during the death sickness and the 2. If during MaradulMaut a man acknowledges a Iddah period did not expire, it is only then she is allowed to right/obligation in favour of non-heirs, which is inherit him. However, if the Talaq was pronounced due to her neither confirmed by common knowledge nor own request against any amount during his death sickness, evidenced by witness, then this acknowledgement then she has no right to inherit him. too is valid. This obligation will also have to be discharged incumbently before the distribution of the Hanafi school‟s reason is that, the Iddah (period) itself it is mayyit’s (deceased‟s) assets among his heirs. part of marriage rulings and the scholars similitude or 3. If during MaradulMaut a man makes an compare her divorce as Talaq Al-Raja’i (revocable divorce) acknowledgement of any obligation favour of a heir (Fauzan, 2017). or he makes a gift of an asset to a heir, it will have no Maliki School: Imam Malik on the other hand opines that if validity. These operations are null and void. the TalaqwasBa’in and pronounced during death sickness, However, if all of the adult heirs uphold the she is entitled to inherit her ex-husband, whether her Idda operation, the obligation will be executed from the hhad expired or she had married another man, or whether it assets remaining after funeral expenses and payment was pronounced on her own request. In Fath al-Jawad if he of debts. divorced her irrevocably in his illness she will inherit him 4. If a person who is a heir of the testator ceases to be even after expiation of Iddah even if she married (IbnRushid, his heir, the acknowledgement in his favour will be 2005). valid. This will happen if the beneficiary of the acknowledgement predeceases the testator. In view Maliki School‟s reason, says in the book of Al-Dhiya’uala Al- of him dying first, he no longer remains a heir, hence Dhurrat al-Bayda’u “The inheritance stands even if she the acknowledgement of debt/obligation in his favour married due to the Athar narrated by Urwa that „Uthman said is valid and the debt/obligation will be paid to the to Abdul-rahman bin Auf when he divorced his wife heirs of the predeceased former heir. Tamadurbint Al-Asbagh, if you die I will allow her to inherit If the acknowledgement is confirmed by common you (Bin Nasir, 1990). knowledge or evidenced by witnesses it will Shafi’i School: According to Imam Shafi‟i, if the Talaq was constitute a debt of the first category of Qardh. In the ba’in, whether it is pronounced during death sickness or absence of such evidence the obligation will be during his health, she is not entitled to inherit him. assigned to the second class of Qardh. 5. If a man divorces his wife during MaradulMaut, Shafi‟i school‟s reasons because it was divorce by him whether by TalaqBa’in or TalaqRaj’i, the Talaq is irrevocably before his death, and if she loses her inheritance effective. If the man dies before expiry of her Iddah, from him just like he divorces her during his health condition she remains his heir and will inherit in his estate. If (Fauzan, 2017).

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Hanbali School: According to Imam Ahmad Bin Hanbal, if after Iddah period as long as she did not marry the Talaqba’I n was pronounced during the death sickness, another husband and also she did not converted to she has the right to inherit him whether her Iddah expires or another religion. not. However, if she had married another person, before the death of her ex-husband, then she has no right to inherit him BIBLIOGRAPHY and if she converted to another religion she has no right again [1]. Al-Qur‟an-Kareem, (1997), Arabic text with corresponding to inherit him. school‟s reason is that if he divorces English meanings, Al-Muntada Al-Islamy: AbulQasim Publishing her deliberately in order to prevent her from her right share House. the Shari‟ah cannot consider his intention even if she finishes [2]. Al-Bukhari, M. I. (2009),(Sahih al-Bukhari,Muhsin, M. (trans.): or did not finish herIddah she is entitle to inherit him Beirut. Dar al-Arabia. [3]. ______(2003), Sahih al-Bukhari, S. J. al-Attar (ed.),. Dar (IbnQudamah, 1419 A.H). al-Fikr, Beirut, Lebanon. [4]. Al-Sabuni, M. A. (1423 A.H), Al-Miraath Fi al-Shari’ah Al- The most preponderant view: The most preponderant view Islamiyyah, Dar-Al-Sabuni, First Edition. according to the researcher of Imam Ahmad because the [5]. Al-Rahbiy, M. A. (2001), Al-Rahbiyyah Fi ILm Al-Fara’idh, reason for giving her right of inheritance is that he divorced SharhSabt al-Maridinin, Dimashq, Dar Al-Ilm, tenth edition. her in order to deprive her or abstain her from inheriting him. [6]. Amabali, M. A. (1998), the practice of Muslim Family Law in Nigeria, Ilorin, Tomaza This decision cannot change due to expiation of her Iddah so [7]. publishing Company Ltd, Nagold Jos Road, Kongo, Zaria, Kwara as to punish him. Allowing her to inherit before expiation of State College of Arabic Islamic Legal Studies. Ilorin. Iddah as said by Hanafiyyah has no meaning because the [8]. Al-Dasuqi, S. M. A. (n.d), Hashiyat al-Dasuqi, Ala Al-Sharh al- divorce is in existence during Iddah or after the Iddah, she Kabir, Beirut, Dar Ihya‟u al-Kutub Al-Arbiya. [9]. Lakvi, S. U. (2003), Justice of Islam in the rules of only allowed inheriting in order to punish the husband and inheritance, Pakistan, Al-Maktabah Al- Muhammadiyyah. prevent people from committing that act.Allowing her to [10]. Abu Malik, K. S.S. (n.d), Salih al- al-Sunnah,Misra, inherit after she married another husband based on Maktabat al-Taufiqiyyah. malikiyyahwiew will make her to inherit more than one [11]. Al-Sharbiliy, S. M. (n.d),Mughni Al-Muhtaj,Misra, Maktabah Al- Taufiqiyyah. husband at a time and this is not allowed by the consensus. [12]. Al-Zuhaili, W. (1997), Al-Fiqh Al-IslamyWaadillatih, Dimashq, Dar Al-Fikr. Abstaining her from inheritance totally as said by shafi‟iyyah [13]. Doi, A. I. (2007), Shari’ah the Islamic Law, A. S. Noorudeen, is not right because „Usman bin Affan (R.A) gave the right of Malaysia, Kuala Lumpur. inheritance to TamadurBint al-Asbagh al-Kalbiyyah when [14]. Fauzan, A. F. (2017), Al-Tahqiqat Al-Mardhiyyah Fi al- Abdurrahman Bin Auf divorced her during his death sickness. Mabaahaat al-Fardhiyyah,Saudiyyah, Makkah Dar Ahlul Qur‟an Li-NashriWa Al-Tauzi‟i. The reason why the researcher prefers this view is that it is a [15]. Gurin, A. M. (1998), An Introduction to Islamic Law of Succession moderate view it didn‟t abstain totally and it didn‟t allowed Testate/Intestate,Jodda press Ltd, Warri Street, SabonGari Zaria, totally, Allah knows the best. (n.p). [16]. Hallaq, M. S. (2008), Fiqh according to the Qur’an and Sunnah, CONCLUSION Riyadh, Maktabah Dar-Us-Salam, King Fahad National Library Cataloging-in-publication Data, Hallaq, Muhammad Subhi. From the foregoing discussion, the paper highlights on the [17]. Hussaini, A. (2005), the Islamic Law of Succession, Riyadh, following points: Maktaba Dar-Us-Salam. [18]. IbnQudamah, A. A. (1419 A. H), Al-Mughni, Riyadh, Dar- Alam 1. Meaning of divorce and its condition. Al-Maktabah, Fourth edition. 2. Differences between divorcee and widow. [19]. IbnRushid, A. (1989), Bidayah Al-MujtahidWaNihayat Al- 3. Islamic law of inheritance and its some important Muqtasid,Makkah, Maktabat Nizaar Mustapha. [20]. IbnMajah, M. Y. (N.D), SunanIbnMajah, edited by Muhammad segments. Fu‟ad Abdul-Baqi, Dar-Ihya‟u Al-Kutub Al-Arbiyah. 4. Definitions of marad al-Maut (death sickness). [21]. IbnJuzayyi, M. A. (n.d), Al-Qawanin Al-Fiqhiyyah, Beirut, Dar- 5. Operation of deceased during death sickness. Al-Kutub Al-Ilmiyyah. [22]. Ibn Al-Hammam, K. M. (1975), SharhFathu Al-Qaddeer, Finally, the paper shades light about its mostimportant aspect Lebanon, Dar Al-Fikr, Second edition. which is the position of divorcee in Islamic law of inheritance. [23]. Maghniyyah, M. J. (1997), Divorce according to the Five Schools of Islamic Law, Iran, Al-Islamic org, AhlulBayt Digital Islamic The divorcee as discussed in the paper is of three types: Library Project. [24]. Maudoodi, M. A. (n.d), the laws of Marriage and Divorce in 1. Revocable divorced woman: Muslim scholars Islam, Book Published, (n.p). unanimously agreed that she can inherit him as long [25]. „Uthaimin, M. S. (2007), Tashil Al-Fara’idh.Al-Qahirah, Dar Ibn as she is in her Iddah period. Al-Jauziy, First Edition. 2. Irrevocable divorced woman: Muslim scholars unanimously agreed that she cannot inherit him whether her Iddah expirred or not. 3. Irrevocable divorced woman during death sickness: Muslim scholars have four different views. The most preponderant view is the view of Hanbali School of law which says she is allowed to inheritance even

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